Opinion
2:19-cv-750
06-13-2022
DEBBIE L. CUSTER, Plaintiff, v. DOLLAR GENERAL CORPORATION, Defendant.
MEMORANDUM OPINION
KIM R. GIBSON, UNITED STATES DISTRICT JUDGE.
I. Introduction
This case arises from Defendant Dolgencorp, LLC's ("Defendant" or "Dollar General") alleged age discrimination against Plaintiff Debbie L. Custer ("Plaintiff" or "Custer") in violation of the Age Discriminnation, in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq. Custer also alleges "tortious interference with economic advantage" on the part of Dollar General.
In its filings, Dollar General asserts that Dolgencorp, LLC was Custer's employer and not "Dollar General Corporation" as the caption of this case reads. (ECF Nos. 6 at 1 n.1; 33 at 1 n.l). Dollar General has stated that it does not object to Plaintiff amending her Complaint to correct the caption and properly identify the Defendant. (ECF No. 6 at 1 n.l). The Court will proceed as though Custer has properly named and captioned the case against her former employer and Defendant, Dolgencorp, LLC.
Pending before the Court is Defendant Dollar General's Motion for Summary Judgment. (ECF No. 32). The Motion is fully briefed (ECF Nos. 33, 39, 45) and ripe for disposition. For the reasons that follow, the Court GRANTS Dollar General's Motion for Summary Judgment.
II. Jurisdiction and Venue
The Court has subject-matter jurisdiction because Plaintiff's ADEA claim arises under federal law. 28 U.S.C. § 1331. The Court has supplemental jurisdiction over Plaintiff's PHRA claim and tortious interference claim because it forms part of the same case or controversy as her ADEA claim. 28 U.S.C. § 1367. Venue is proper because a substantial portion of the events giving rise to Plaintiff's claims occurred in the Western District of Pennsylvania. 28 U.S.C. § 1391.
III. Factual Background
The following facts are undisputed unless otherwise noted.
The Court derives these facts from a combination of Dollar General's Local Rule 56(b)(1) Concise Statement of Undisputed Material Facts (ECF No. 34) and the exhibits referenced therein, Custer's Local Rule 56(c) Response to Dollar General's Concise Statement of Undisputed Material Facts (ECF No. 40) and the exhibits referenced therein, and Dollar General's Local Rule 56(d) Response to Custer's "New Matter" (ECF No. 45) and the exhibits referenced therein.
a. Introduction
Plaintiff Debbie L. Custer was employed by Dollar General from April 1, 2001, until November 15, 2017. (ECF Nos. 34 at ¶ 1; 40 at ¶ 1). Custer is an adult female who was born on January 19, 1964. (Id. at ¶ 2). At the time Custer was discharged from Dollar General, she held the position of District Manager. (Id. at ¶ 3). During the time at issue in this case, Joshua Allison ("Allison") held the position of Regional Director for Dollar General. (Id. at ¶ 8). As a Regional Director, Allison was responsible for over 200 stores, including the stores where Custer was a District Manager. (Id.).
b. Custer's Responsibilities as a District Manager
As a District Manager, Custer was responsible for overseeing Store Managers, conducting store visits and store walks, resolving "store issues" including customer complaints, and reviewing customer refunds of the stores within her district. (Id. at ¶¶ 4, 6). Custer was also responsible for managing and presenting inventory effectively and protecting company assets through loss prevention and expense efficiency. (Id. at ¶¶ 11-12). Custer was required to assist in controlling "shrink" in the stores she managed. (Id. at ¶ 15). "Shrinkage" or "shrink" is a term used within Dollar General and refers to merchandise that does not "go through the register." (Id. at ¶ 15) (citing ECF No. 34-1 at Exhibit A, p. 23:13-21). Shrink includes those items lost to shoplifting and/or theft and is tracked through all inventories in Dollar General. (ECF Nos. 34 at ¶¶ 16-17: 40 at ¶¶ 16-17). District Managers are responsible for generating and overseeing shrink reduction plans within their stores. (Id. at ¶ 18).
Dollar General stores also maintain "markdown carts" which are used for general merchandise and non-perishable merchandise that is damaged and/or moving toward an expiration date. (Id. at ¶ 19). Custer was responsible for ensuring that the correct products were placed in the markdown carts within her stores and that the carts were not excessively used. (Id. at ¶ 20). As the District Manager, Custer was responsible for ensuring that each of her stores' practices with respect to markdown carts were consistent with Dollar General's policies. (Id. at ¶ 24).
Additionally, Dollar General utilizes what it terms "Exception Based Reports" ("EBR") to track various integrity concerns within Dollar General stores, including false refunds and improper time tracking. (Id. at ¶ 25). When a District Manger receives an EBR regarding a store within the District Manager's district, the District Manager has a responsibility to investigate the issues contained in the EBR. (Id. at ¶ 26). Following an investigation, the District Manager is responsible for reporting the results of his or her investigation into the Exception Base Reporting System ("EBR System"). (Id. at ¶ 27).
c. Custer's Disciplinary History with Dollar General
In or around September 2015, Custer was placed on a Performance Improvement Plan ("PIP") by her then-Regional Director, James Manegold ("Manegold"), to help Custer improve store conditions, store sales, and SAS scores. (Id. at ¶¶ 28-30). SAS scores include the issue of shrink within a given store. (Id. at ¶ 31). Custer maintains that she graduated from her September 2015 PIP with "flying colors." (ECF No. 40 at New Matter ¶ 3). In or around January 2017, when Allison was Custer's Regional Director, an additional coaching document was prepared for Custer. (ECF Nos. 34 at ¶¶ 32-33; 40 at ¶¶ 32-33). Custer was only issued two performance-related plans throughout her time at Dollar General. (ECF No. 40 at New Matter ¶ 2). Custer argues that Allison "did not have a view of [her] performance" at the time he instituted a second performance-related plan in January 2017 because Allison had just become Custer's superior that same month. (Id. at ¶ 5).
d. Allison's Review of Custer's EBRs, Dollar General's Internal Investigation and Custer's Termination
At some point in 2017, Allison reviewed Dollar General's EBRs regarding Custer's actions with respect to Store 4403. (ECF Nos. 34 at ¶ 34; 40 at ¶ 34). In his review, Allison noted that (1) certain of Custer's EBRs were incomplete, (2) there was "not a lot of information in [the EBRs submitted by Custer]," and (3) in some cases, the results of Custer's investigation of shrink issues within her store consisted of only three words. (Id. at ¶¶ 34-35). At the time the EBRs were submitted, Store 4403 had been put on Dollar General's "risk list" due in part to the increased shrinkage occurring at the store. (Id. at ¶ 37). Following an investigation into the problems of Store 4403 conducted by Dollar General, it was also determined that inappropriate items, including excess merchandise, had been placed in Store 4403's markdown cart. (Id. at ¶ 38). The investigation also revealed that there were deliberate conversations between Custer, the Store Manager and the store's team in which employees were told to place inappropriate items in the markdown cart resulting in Dollar General losing money. (Id. at ¶ 39). Allison maintains that his decision to terminate Custer was based on her misuse of the markdown cart at Store 4403, her incomplete or "falsified" EBR documentation with respect to shrinkage, and the fact that Custer's representations to Dollar General about the markdown cart and shrink issues at Store 4403 were inconsistent with the findings of an internal investigation. (Id. at ¶¶ 41-44).
e. Custer's Allegations of Age Discrimination
Custer maintains that she was wrongfully terminated on the basis of her age. (Id. at ¶ 46). In her deposition, Custer stated that it was her belief that she was terminated on the basis of her age because she was replaced by a younger woman named Carrie Snowberger ("Snowberger"). (Id. at ¶ 47). Snowberger was bom in 1973 and is approximately nine years younger than Custer. (ECF No. 34-2 at Exhibit B). Custer also stated in her deposition that nothing, other than the fact that she was replaced by the younger Snowberger, led her to believe that she was terminated because of her age. (ECF Nos. 34 at ¶¶ 48-55; 40 at ¶¶ 48-55).
To be sure, Custer also testified in her deposition that she observed Allison getting along better with other District Mangers, including Snowberger. (ECF No. 40 at New Matter ¶ 9). Custer also stated that Allison would ask Snowberger to sit next to him at meetings, Allison would never ride with Custer to do store visits, and Allison would frequently not accept Custer's emails. (Id. at ¶¶ 10-11, 13-14). Custer also stated in her deposition that Snowberger was assigned to higher-quality stores while Custer was assigned to stores with more issues, including not having enough staff. (Id. at ¶16).
f. Custer's Claims of Tortious Interference with Economic Advantage
Following her departure from Dollar General, in September 2018, Custer was hired by News America Marketing ("NAM"). (ECF Nos. 34 at ¶ 56; 40 at ¶ 56). As part of her new position with NAM, Custer was required to work within certain Dollar General Stores to stock products, fill coupon holders and put advertising stickers on the floor. (Id. at ¶¶ 57-58).
On or about November 3, 2018, Dollar General was informed that certain Store Managers were concerned that Custer would be working within their stores. (Id. at ¶ 60). Following Dollar General learning of these concerns from its Store Managers, Dollar General's Human Resources representative informed Custer that she was not permitted inside the Dollar General stores where she was previously a District Manager. (Id. at ¶ 61). NAM was also informed that Custer was asked not to work within certain Dollar General stores. (Id. at ¶ 62). NAM then terminated Custer. (Id. at ¶ 63).
IV. Procedural Background
On June 25, 2019, Custer filed her Complaint bringing the following three claims against Dollar General: Discrimination in Violation of the ADEA (Count I), Discrimination in Violation of the PHRA (Count II), and "Tortious Interference with Economic Advantage." (Count III). (ECF No. 1).
Dollar General moved for summary judgment on September 30, 2020. (ECF No. 32). Custer responded in opposition on November 30, 2020 (ECF No. 39), and Dollar General replied on December 15, 2020. (ECF No. 46).
V. Legal Standard
This Court will grant summary judgment "if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Melrose, Inc. v. Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010) (quoting Ruehl v. Viacom, Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). There is a genuine issue of fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material facts are those that affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248. The Court's role is "not to weigh the evidence or to determine the truth of the matter, but only to determine if the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). In deciding a summary judgment motion, this Court "'must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.'" Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).
The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the party opposing summary judgment "may not rest upon the mere allegations or denials" of the pleading, but "must set forth specific facts showing that there is a genuine issue for trial.” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 n.ll (1986)). "For an issue to be genuine, the nonmovant needs to supply more than a scintilla of evidence in support of its position-there must be sufficient evidence (not mere allegations) for a reasonable jury to find for the nonmovant." Coolspring Stone Supply v. Am. States Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993); see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (noting that a party opposing summary judgment "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue").
VI. Discussion
Custer alleges claims of age discrimination against Dollar General under both the ADEA and PHRA. Specifically, Custer asserts that Dollar General discriminated against her on the basis of her age by terminating her employment with Dollar General. (ECF No. 1 at ¶ 1). Custer also alleges a claim of "Tortious Interference with Economic Advantage" against Dollar General. (Id. at ¶¶ 61-62).
Courts analyze claims under the ADEA and PHRA in the same manner. See Willis v. UPMC Children's Hospital of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015); see also Connors v. Chrysler Financial Corp., 160 F.3d 971, 972 (3d Cir. 1998). The Court references only the ADEA framework for brevity-if Dollar General is entitled to summary judgment on Plaintiffs ADEA claim, it is likewise entitled to summary judgment on Plaintiffs PHRA claims.
With respect to Custer's ADEA claim, the ADEA makes it unlawful for an employer to discharge "any individual or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Here, it is undisputed that at the times relevant to this suit, Dollar General was an "employer" subject to the ADEA's provisions, and Custer was over forty years of age and entitled to the protections of the ADEA. 29 U.S.C. § 630(b) and 29 U.S.C. § 631(a). Further, since this is an age discrimination case in which Custer has presented no “direct evidence" of age discrimination, the Supreme Court's burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) provides the formulation for allocating the requisite burdens of proof and production for purposes of the instant motion for summary judgment. In an age discrimination case of this kind, the plaintiff must first establish a prima facie case of illegal discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff establishes a prima facie case of discrimination, the defendant must articulate legitimate, non-discriminatory reasons for treating the plaintiff in an adverse manner. Id. at 802-03. If the defendant articulates legitimate, non-discriminatory reasons for the plaintiff's adverse treatment, the plaintiff must demonstrate that the reasons given by the defendant for such treatment are merely a pretext for unlawful discrimination. Id. at 804-05.
In Gross v. FBL Fin. Servs., Inc., the Supreme Court held that plaintiffs in an ADEA case must establish, by a preponderance of evidence, that age was the "but-for" cause of the complained-of adverse employment action. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009). Although Gross cast significant doubt on any burden-shifting under the ADEA, the Third Circuit has concluded that "the but-for causation standard required by Gross does not conflict with our continued application of the McDonnell Douglas paradigm in age discrimination cases." Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009). Therefore, consistent with Third Circuit precedent, the Court will apply the McDonnell Douglas burden-shifting framework to this age discrimination case.
The McDonnell Douglas burden-shifting framework does not apply in an employment discrimination case in which a plaintiff presents "direct evidence" of discrimination. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002). "Direct evidence" of discrimination is evidence that is "so revealing of discriminatory animus that it is not necessary to rely on any presumption" from the plaintiffs prima facie case to shift the applicable burden of production to the defendant. Starceski v. Westinghouse Electric Corp., 54 F.3d 1089, 1096 n.4 (3d Cir. 1995). The evidence presented in this case does not constitute "direct evidence" of discrimination.
With respect to Custer's claim of "Tortious Interference with Economic Advantage," Dollar General argues, and Custer concedes, that her claim for "Tortious Interference with Economic Advantage" is more properly labeled as a claim for intentional interference with contractual relations. (See ECF Nos. 33 at 14 n.4; 39 at 4-12). Under Pennsylvania law, a Plaintiff must demonstrate the following elements to establish a claim for intentional interference with contractual relations:
(1) the existence of a contractual, or prospective contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as a result of the defendant's conduct.CGB Occupational Therapy, Inc. v. RHA Health Services Inc., 357 F.3d 375, 384 (3d Cir. 2004) (quoting Crivelli v. General Motors Corporation, 215 F.3d 386, 394 (3d Cir. 2000)).
a. Custer Cannot Show that Dollar General Discriminated Against Her on the Basis of Her Age
1. The Parties' Arguments
Dollar General argues that it did not discriminate against Custer on the basis of her age.
Moreover, Dollar General contends that Custer cannot establish a prima facie case of age discrimination because Custer has not proffered sufficient evidence to show that her termination from Dollar General occurred under circumstances giving rise to an inference of age discrimination. (ECF No. 33 at 9 -12).
Further, Dollar General asserts that even if Custer could establish a prima facie case for age discrimination, Dollar General has proffered legitimate, non-discriminatory reasons for its termination of Custer. (Id. at 12-13). More specifically, Dollar General argues that it terminated Custer for legitimate, non-discriminatory reasons because Custer demonstrated poor job performance with respect to her loss prevention and shrink related duties, as well as Custer's attempts to deflect and/or cover up her failures by providing incomplete and/or false information to Dollar General. (Id.). Finally, Dollar General argues that Custer has not proffered sufficient evidence to demonstrate that the legitimate, non-discriminatory reasons Dollar General articulated for terminating Custer are pretextual. (Id. at 13-14).
In response, Custer argues that Dollar General terminated her on the basis of her age. (ECF No. 39). Specifically, Custer argues that she can establish a prima facie case of age discrimination because she was replaced by Snowberger- an employee of Dollar General who is "sufficiently younger" than Custer. (Id. at 1-2). Further, Custer argues that she has proffered sufficient evidence to demonstrate that the legitimate, non-discriminatory reasons Dollar General articulated for terminating her are merely pretextual. (Id. at 3-4).
2. Custer Can Establish a Prima Facie Case of Age Discrimination Under the ADEA
To establish a prima facie case of age discrimination under the ADEA, a plaintiff must show that: "(1) the plaintiff is at least forty years old; (2) the plaintiff suffered an adverse employment decision; (3) the plaintiff was qualified for the position in question; and (4) the plaintiff was ultimately replaced by another employee who was sufficiently younger so as to support an inference of a discriminatory motive." Willis v. UPMC Children's Hospital of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015) (citing Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013)). The Third Circuit has indicated that establishing a prima facie case is not "intended to be rigid, mechanized, or ritualistic." Id. (quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)). Moreover, "[establishing a prima facie case of discrimination is not onerous and poses a burden easily met."' Hartman v. Select Rehabilitation, LLC, 528 F.Supp.3d 373, 382 (E.D. Pa. 2021) (quoting Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 365 (3d Cir. 2008)).
Here, at the time Custer was terminated, it is undisputed that she was at least forty years old, she suffered an adverse employment action through termination, and she was qualified for the position she held. (ECF No. 33 at 10). Therefore, the Court must only determine whether Custer was ultimately replaced by another employee who was sufficiently younger so as to support an inference of discriminatory motive.
Dollar General states that it will defer on the issue of whether Custer was qualified for the position she held until trial, if trial is necessary, because the question of Custer's qualifications include questions of fact that are not appropriate for summary judgment. (ECF No. 33 at 10 n.3).
A. Terminating Custer and Replacing Her with Snowberger Supports an Inference of Discriminatory Motive
Dollar General argues that Custer's prima facie case fails because Custer has not proffered evidence to prove that her termination from Dollar General occurred under circumstances that could give rise to an inference of age discrimination. (ECF No. 33 at 10). Specifically, Dollar General contends that Custer's "replacement by someone younger, without more, will not give rise to an inference of age discrimination." (ECF No. 33 at 9) (quoting Maxfield v. Sinclair International, 766 F.2d 788, 792 (3d Cir. 1985)). Dollar General argues that Custer can point to no evidence, other than being replaced by Snowberger, that gives rise to an inference of age discrimination. (Id.). Lastly, Dollar General argues that even if replacing Custer with Snowberger gives rise to an inference of discrimination on the part of Dollar General, Snowberger is also a member of the ADEA protected age group and Custer has not demonstrated a necessary "substantial difference in [their respective] ages" so as to satisfy her prima facie burden. (Id.).
In response, Custer argues that to establish a prima facie case of age discrimination, she need only show that the beneficiary of Dollar General's age discrimination is "sufficiently younger" so as to permit an inference of age discrimination. (ECF No. 39 at 1) (quoting Maxfield, 766 F.2d at 792). Custer argues that this Court should conclude that the nine years' age difference between her and Snowberger makes Snowberger "sufficiently younger" so as to permit an inference of age discrimination because the Third Circuit has concluded that nine years' age difference is sufficient to establish a prima facie case of age discrimination. (Id. at 2) (citing Healy v. New York Life Insurance Company, 860 F.2d 1209, 1214 (3d Cir. 1988)).
"[A]n ADEA plaintiff may establish the fourth element of the McDonnell Douglas test for a prima facie case by showing that s/he was replaced by a person sufficiently younger to permit an inference of age discrimination." Maxfield, 766 F.2d 788 at 793. To be deemed "sufficiently younger," a replacement "need not be younger than 40, the age at which ADEA protections begins." Id. at 792. Indeed, "[i]f no intra-age group protection were provided by the ADEA, it would be of virtually no use to persons at the upper ages of the protected class whose jobs require experience since even an employer with clear anti-age animus would rarely replace them with someone under 40." Id. Rather, a plaintiff need only show that "the favorably treated employee was 'sufficiently younger to permit an inference of age discrimination.'" Tozzi v. Union R. Co., 722 F.Supp. 1236, 1240 (W.D. Pa. 1989) (quoting Maxfield, 766 F.2d 788 at 793).
Here, the Court finds that Custer has demonstrated that she was replaced by another employee who was sufficiently younger so as to support an inference of a discriminatory motive. Indeed, at the time Custer was terminated and replaced by Snowberger, Custer was approximately 53 years old and Snowberger was approximately 44 years old. (ECF Nos. 34 at ¶¶ 2, 47; 40 at ¶¶ 2, 47). Although Custer and Snowberger are both members of the ADEA protected age group, 29 U.S.C. § 631(a), their shared protected status does not immunize Dollar General against an inference of age discrimination. Maxfield, 766 F.2d at 792. Further, the Third Circuit has previously determined, in dicta, that nine years' age difference is "sufficiently younger" so as to establish a -prima facie case of age discrimination. See Healy, 860 F.2d at 1214 (finding that a 56-year-old plaintiff had established a prima facie case of age discrimination by showing that his position was filled by a 47-year-old person). Here, the Court finds that Custer has produced sufficient evidence to support an inference of discriminatory motive on the part of Dollar General because Custer was replaced by another employee who is nine years younger than her. Accordingly, the Court finds that Custer has established a prima facie case of age discrimination against Dollar General under the ADEA.
3. Dollar General Has Put Forth Sufficient Evidence to Permit a Reasonable Jury to Find that it Terminated Custer for Legitimate, Non-Discriminatory Reasons
Once the plaintiff establishes a prima facie case of age discrimination, the burden of production shifts to the defendant to rebut the presumption of discrimination through the introduction of admissible evidence indicating that the challenged employment action was taken for legitimate, non-discriminatory reasons. McDonnell Douglas, 411 U.S. at 802-03. To sustain this burden, the defendant need not persuade the court that it was actually motivated by the proffered reasons because this inquiry does not involve a credibility assessment. Id. at 254; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). The defendant satisfies its burden of production, and rebuts the plaintiff's prima facie showing of discrimination, simply by introducing admissible evidence that, if taken as true, would permit a finding that the challenged employment action was taken for legitimate, non-discriminatory reasons. St. Mary's Honor Ctr., 509 U.S. at 509.
Here, the Court finds that Dollar General has produced sufficient evidence to show that it terminated Custer for legitimate, non-discriminatory reasons. Indeed, Dollar General has produced evidence indicating that Custer was terminated from Dollar General because (1) she had poor performance with respect to her loss prevention and shrink-related duties, which resulted in financial losses to her store and employer, and (2) she attempted to deflect and/or cover up her failures by providing incomplete and/or false information to Dollar General. (ECF No. 33 at 12-13).
Accordingly, Dollar General has satisfied its burden of production to show that it took the adverse action of terminating Custer for legitimate, non-discriminatory reasons.
4. Custer Cannot Show that Dollar General's Legitimate, Non-Discriminatory Reasons for Terminating Her Were Pretextual
Given that Dollar General has met its burden under McDonnell Douglas, the burden shifts back to Custer to show that Dollar General's stated reasons are a pretext for age discrimination. Custer must show pretext by pointing to some evidence which: "(1) casts sufficient doubt upon each of the legitimate reasons proffered by [Dollar General] so that a factfinder could reasonably conclude that each reason was a fabrication; or (2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Puentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994).
To establish pretext under the first prong of Puentes, Custer must demonstrate "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Dollar General's] proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that [Dollar General] did not act for [the asserted] non-discriminatory reasons." Fuentes, 32 F.3d at 765 (internal quotation omitted). In analyzing this prong, "'federal courts are not arbitral boards ruling on the strength of 'cause' for discharge. The question is not whether the employer made the best or even a sound business decision; it is whether the real reason is [discrimination]"' Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (en banc) (quoting Carson v. Bethlehem Steel Corp., 82. F.3d 157, 159 (7th Cir. 1996)). Although this standard places a difficult burden on Custer, the burden "arises from an inherent tension between the goal of all discrimination law and our society's commitment to free decision[-]making by the private sector in economic affairs." Fuentes, 32 F.3d at 765 (quoting Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)).
Under the second prong of Fuentes, a plaintiff can establish pretext by pointing to "evidence that would allow a factfinder to believe that an invidious discriminatory reason was 'more likely than not a motivating or determinative cause' of the employer's action.'" Willis, 808 F.3d at 644-645 (quoting Fuentes, 32 F.3d at 762). "Pointing to evidence demonstrating any of the following satisfies this second way to prove pretext: (1) the defendant previously discriminated against the plaintiff; (2) the defendant discriminated against others within the plaintiff's protected class; or (3) the defendant has treated similarly situated, substantially younger individuals more favorably. Id. (citing Simpson v. Kay Jewelers, Division of Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998)).
Custer refers the Court to several paragraphs included in her response to Defendant's Concise Statement of Material Facts as evidence of pretext on the part of Dollar General. (ECF No. 39 at 4). In reviewing these paragraphs, Custer alleges that the legitimate, non-discriminatory reasons Dollar General offers for terminating her are pretextual because: (1) Allison treated Snowberger and other District Mangers more favorably than Custer (ECF No. 40 at New Matter ¶¶ 10-15), (2) Dollar General targeted Store 4403 (Custer's store) for excessive coupon use when excessive coupon use, theft and shrink were a problem throughout the Dollar General organization (Id. at ¶¶ 29-32, 63), (3) Dollar General did not permit Custer to review employee statements taken during Dollar General's investigation, or allow Custer to make a statement of her own (Id. at ¶¶ 40-41, 43, 46), (4) Dollar General terminated Custer although the performance of Custer's stores did not raise concerns for Allison and her stores' performance was progressing between quarter one and quarter two (Id. at ¶¶ 51, 58), (5) Dollar General replaced Custer with the younger Snowberger (Id. at ¶ 64), and (6) Dollar General had never terminated another District Manager in Region 11 for the same offenses as Custer. (Id. at ¶ 69).
Having reviewed these paragraphs, the Court finds that none of the evidence offered by Custer demonstrates pretext on the part of Dollar General. Indeed, the Court finds that, based on the evidence Custer presents, no reasonable factfinder could disbelieve Dollar General's articulated reasons for terminating her- namely (1) she had poor performance with respect to her loss prevention and shrink-related duties, and (2) she attempted to deflect and/or cover up her failures by providing incomplete and/or false information to Dollar General. (ECF No. 39 at 12-13). Further, even assuming the evidence of pretext offered by Custer is true on its face, none of Custer's evidence "casts sufficient doubt" on Dollar General's proffered legitimate, non-discriminatory reasons for terminating Custer, nor does the evidence allow a reasonable factfinder to infer that age discrimination was more likely than not the motivating or determinative cause for Custer's termination. Fuentes, 32 F.3d at 762. Nevertheless, the Court will address Custer's proffered evidence of pretext in turn.
First, Custer offers evidence of pretext in the form of her own deposition testimony alleging that Allison would treat Snowberger and other District Managers more preferably than Custer. (ECF No. 40 at New Matter ¶¶ 10-15). Custer lists the following examples of discriminatory treatment at the hands of Allison: (1) Allison would have Snowberger sit next to him in meetings but would not ride with Custer to do store visits, (2) Allison would meet and ride with other District Managers to do store visits but never told Custer why he would not ride with her, (3) Allison would frequently refuse Custer's emails and tell her to send her emails again, and (4) Allison would refuse Custer's emails even when she used the same format as her coworkers. (Id.). Other than Snowberger, Custer has not indicated the ages of the other District Managers and coworkers she alleges Allison treated more favorably than her. Without more information, Custer's evidence of pretext on the part of Dollar General fails because she has not provided the Court with any evidence that Allison's more favorable treatment of her coworkers and other District Managers was a result of age discrimination. The Court cannot find pretextual age discrimination where it is unaware of the age of the parties Custer claims were more favorably treated than her. Additionally, with respect to Allison's more favorable treatment of Snowberger, none of Allison's favorable treatment of Snowberger offered by Custer establishes that Dollar General's legitimate, non-discriminatory reasons for terminating Custer were pretextual. Indeed, even assuming that Allison would sit next to Snowberger in meetings, ride with Snowberger to do store visits, and accept Snowberger's emails without asking her to send them again, none of these instances of more favorable treatment refutes Dollar General's articulated reasons for terminating Custer. Based on the evidence before it, the Court finds that no reasonable factfinder could find that Dollar General's offered reasons for terminating Custer were a pretext to discriminate against Custer on the basis of her age.
Second, Custer offers evidence of pretext on the part of Dollar General in arguing that Dollar General targeted Store 4403 (Custer's store) for excessive coupon use when excessive coupon use, theft and shrink were a problem throughout the Dollar General organization. (ECF No. 40 at New Matter ¶¶ 29-32, 63). Indeed, it may very well be true that theft, excessive coupon use and shrink are an issue throughout the Dollar General organization. However, this is not evidence that casts doubt on Dollar General's contention that Custer had poor performance with respect to her loss prevention and shrink-related duties, and that Custer attempted to deflect and/or cover up her failures by providing incomplete and/or false information to Dollar General. Moreover, evidence stating that excessive coupon use, theft and shrink are ubiquitous throughout Dollar General does not negate the legitimate, non-discriminatory reasons Dollar General offered as the reason it terminated Custer. Here, the Court finds Custer's evidence of pretext on this point is inadequate to permit a reasonable factfinder to find pretext on the part of Dollar General.
Third, Custer offers evidence of pretext on the part of Dollar General in the form of Dollar General not permitting her to review employee statements taken during Dollar General's investigation or allowing her to make a statement of her own during the investigation. (ECF No. 40 at New Matter ¶¶ 40-41, 43, 46). However, evidence that an investigation was "imperfect, unwise or inaccurate" is not sufficient to establish evidence of pretext. Caplan v. L Brands/Victoria's Secret Stores, LLC, 210 F.Supp.3d 744, 768 (W.D. Pa. 2016). Moreover, "a challenge to the sufficiency or propriety of [an] investigation is inadequate to establish pretext." Id. (citing Money v. Provident Mutual Life Insurance Company, 189 Fed.Appx. 114, 116-17 (3d Cir. 2006)). Here, although Custer takes issue with not being permitted to review employee statements taken during Dollar General's investigation, or the fact that she was not permitted to offer a statement of her own, neither instance is sufficient to establish pretext on the part of Dollar General. Indeed, the Court finds this evidence is insufficient to permit a reasonable factfinder to find pretext on the part of Dollar General.
Fourth, Custer offers evidence of pretext in arguing that Dollar General terminated Custer even though Custer's store performance did not raise concerns for Allison and her stores were progressing between quarter one and quarter two. (ECF No. 40 at New Matter ¶ 51). Even assuming Custer's contentions are true that she was terminated by Dollar General despite her stores' improved performance, such evidence is unavailing in refuting the legitimate, non-discriminatory reasons offered by Dollar General for terminating Custer. Indeed, it is not the role of this Court to question whether Dollar General made a sound business decision in terminating Custer when her stores were improving. See Keller, 130 F.3d at 1109. Rather, the Court must determine whether the real reason for Custer's termination was based on age discrimination. See id. Here, the Court finds that Custer's offered evidence of pretext is insufficient to establish pretext on the part of Dollar General because this evidence does nothing to refute Dollar General's claims that it terminated Custer for poor performance related to loss prevention and shrink-related duties, and her attempts to deflect and/or cover up her failures by providing incomplete and/or false information to Dollar General. (ECF No. 39 at 12-13). Given the foregoing, no reasonable factfinder could find that Dollar General's offered reasons for terminating Custer were a pretext to discriminate against Custer on the basis of her age.
Fifth, Custer offers evidence of Dollar General replacing her with the younger Snowberger as evidence of pretext on the part of Dollar General. (ECF No. 40 at New Matter ¶ 64). "Evidence used to establish a prima facie case of discrimination may also be relied upon to demonstrate pretext, since nothing about the McDonnell Douglas framework requires a court to ration the evidence presented in a particular case among the prima facie and pretext stages of the plaintiff's case." Krohmer v. American Airlines, Inc., 2021WL 3828150 at *16 (W.D. Pa. Aug. 27, 2021) (citations omitted). "[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)). Here, although Custer cites the same evidence that she was replaced by the younger Snowberger as previously produced to establish her prima facie case of age discrimination, she has produced no additional "sufficient evidence" that would permit the Court to find that Dollar General unlawfully discriminated against Custer on account of her age. The Court finds Custer's evidence of pretext on the part of Dollar General is inadequate because Custer has offered no additional sufficient evidence other than the fact that she was replaced by a younger employee (see ECF Nos. 34 at ¶ 48; 40 at ¶ 48; 34-1 at Exhibit A p. 77:5-9). No reasonable factfinder could find that Dollar General's offered reasons for terminating Custer were a pretext to discriminate against Custer on the basis of her age., Finally, Custer offers evidence of pretext by arguing that Dollar General had never terminated another District Manager in Region 11 for the same offenses as Custer. (ECF No. 40 at New Matter ¶ 69). Even assuming this evidence is true, the Court finds it nonetheless unavailing. This evidence does little to demonstrate pretext with respect to Dollar General's legitimate, non- discriminatory reasons for terminating Custer. Indeed, this evidence does nothing to refute that Custer was terminated for poor performance and attempting to deflect and/or cover up her failures because it may very well be true that no other worker in Region 11 produced such poor performance and/or attempted to deflect and/or cover up his/her failures. Here, the Court finds that this evidence is insufficient to demonstrate pretext on the part of Dollar General, and no reasonable factfinder could find that Dollar General's offered reasons for terminating Custer were a pretext to discriminate against Custer on the basis of her age.
Given the foregoing, the Court finds that Custer has failed to offer sufficient evidence to demonstrate that Dollar General's legitimate, non-discriminatory reasons offered for terminating her are pretextual. Moreover, the Court finds that no reasonable factfinder could find that Dollar General's offered reasons for terminating Custer were pretextual. Accordingly, Dollar General's motion for summary judgment will be granted with respect to Custer's claims of age discrimination under the ADEA and PHRA.
b. There is No Genuine Issue of Material Fact as to Whether Dollar General is Liable to Custer Under a Theory of Intentional Interference with Contractual Relations
1. The Parties' Arguments
Dollar General contends that Custer cannot proffer evidence sufficient to support a claim for intentional interference with contractual relations. (ECF No. 33 at 15-18). Specifically, Dollar General alleges that Pennsylvania law does not view an at-will employment relationship as a contractual relationship for purpose of establishing an intentional interference claim. (Id.) (citing Haun v. Community Health Sys., Inc., 14 A.3d 120, 125 (Pa. Super. Ct. 2011); Hennessy v. Santiago, 708 A.2d 1269, 1278-1279 (Pa. Super. Ct. 1998). Further, Dollar General argues that even if the Court were to find that an at-will employment relationship qualifies as a contractual relationship, Custer has not proffered any evidence that would show that Dollar General acted with an intent to harm the contractual relationship between Custer and NAM. (Id.). Lastly, Dollar General argues that Custer's intentional interference claim must fail because Dollar General was justified in asking Custer to not enter its stores as she was terminated for performance and misconduct related to shrink. (Id.).
In response, Custer argues that the Court should find that an at-will employment relationship between Custer and NAM is a contractual relationship for purposes of establishing a claim for intentional interference with contractual relations. (ECF No. 39 at 4-10). Further, Custer argues that once the Court finds that an at-will employment relationship between Custer and NAM is a contractual relation, the Court should deny Dollar General's motion for summary judgment because the issue of Dollar General's intent in interfering with her contractual relation with NAM is an issue of fact that should be resolved by the finder of fact. (Id. at 12).
2. Custer's Claim for Intentional Interference with Contractual Relations Fails as a Matter of Law
In Pennsylvania, "it is widely held that Pennsylvania law does not recognize a claim for tortious interference with an employment contract that is an at-will arrangement." Airgood v. Township of Pine, 2016 WL 1247237 at *8 (W.D. Pa. Mar. 30, 2016) (quoting Mifflinburg Telegraph, Inc. v. Criswell, 80 F.Supp.3d 566, 570 (M.D. Pa. 2015)). Indeed, in Hennessy v. Santiago, the Pennsylvania Superior Court found that "an action for intentional interference with performance of a contract in the employment context applies only to interference with a prospective employment relationship whether at-will or not, not a presently existing at-will employment relationship." Hennessy v. Santiago, 708 A.2d 1269, 1278-79 (Pa. Super. Ct. 1998). Further, "the Pennsylvania Superior Court has explicitly reaffirmed Hennessy on more than one occasion." See Pride v. Wal-Mart Stores East, LP, 2019 WL 5862171 at *6 (W.D. Pa. Nov. 8, 2019) (citing Haun v. Cmty. Health Sys., 14 A.3d 120, 125 (Pa. Super. Ct. 2011)). Moreover, the Haun court has made clear that "[u]nless or until Hennessy is overturned by anen hanc panel of [the Superior Court of Pennsylvania], or by a decision of the Pennsylvania Supreme Court, it continues to be viable precedent for this Court and for the courts of common pleas." Haun, 14 A.3d at 125 n.l.
Notwithstanding the precedent referenced above, Custer argues that this Court should rely on another Pennsylvania Superior Court opinion in which the Superior Court found that a claim for intentional interference does extend to an existing at-will employment relationship. (ECF No. 39 at 4-10) (citing Curran v. Children's Service Center of Wyoming County, Inc., 578 A.2d 8, 13 (Pa. Super. Ct. 1990) (finding that "[a] cause of action for intentional interference with a contractual relationship may be sustained even though the employment relationship is at-will."). See also Yaindl v. Ingersoll-Rand Co., 422 A.2d 611, 618 n.6 (Pa. Super. Ct. 1980) (same). Further, Custer argues that this Court should predict how the Supreme Court of Pennsylvania would address this issue because Pennsylvania's highest court has not yet addressed whether a claim for intentional interference with contractual relations extends to existing at-will employment relationships. (ECF No. 39 at 4-10). See also White v. Bommer, 747 F.Supp.2d 447, 469 (E.D. Pa. 2010) (quoting Nationwide Mutual Insurance Co. v. Buffetta, 230 F. 634, 637 (3d Cir. 2000) (finding that "[i]f the Supreme Court of Pennsylvania has not addressed a precise issue, a prediction must be made, taking into consideration 'relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court of the state would decide the issue at hand/").
To be sure, both federal and state courts have been split on this issue. See e.g., Tisone v. Berardino, 2016 WL 7404556 at *8 (W.D. Pa. Dec. 22, 2016) (collecting cases); Nilson v. Softmart, Inc., 2013 WL 12149706 at *2 (E.D. Pa. Feb. 15, 2013) (collecting cases). However, “[t]he opinions of intermediate appellate state courts are not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise/" Nationwide Mutual Insurance Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000) (quoting West v. AT & T Co., 311 U.S. 223, 237 (1940)). Here, the Court finds no such persuasive data exists that would lead this Court to find that the Pennsylvania Supreme Court would overturn Haun and Hennessey as Custer alleges. Moreover, it is the duty of this Court to apply the substantive law of Pennsylvania on this issue, see Erie R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938), and "the fact remains that [Hennessey] is the Superior Court's most recent word on the issue and therefore is currently the law of Pennsylvania." Mifflinburg Telegraph, Inc., 80 F.Supp. at 571 (quoting Ransom v. Carbondale Area School Dist., 982 F.Supp.2d 397, 405 (M.D. Pa. 2013)). Therefore, as an at-will employee with NAM, Custer's claim for intentional interference with contractual relations fails as a matter of law.
Nevertheless, even assuming Custer could bring a claim for intentional interference with contractual relations based on her at-will employment relationship with NAM, there is no dispute of material fact that Dollar General did not intentionally interfere with Custer's contractual relations with her employer, NAM.
3. No Reasonable Jury Could Find that Dollar General Intentionally Interfered with Custer's Contractual Relations with NAM
Dollar General argues that even if the Court finds that a claim for intentional interference with contractual relations extends to Custer's at-will employment relationship with NAM, Custer has nonetheless failed to establish elements two and three of her claim. (ECF Nos. 33 at 15-17; 46 at 6-8). In response, Custer contends that Dollar General's conduct clearly demonstrates the requisite intent needed to support her claim of intentional interference with contractual relations. (ECF No. 39 at 11-12). Moreover, Custer argues that determinations of intent are not appropriate at the summary judgment phase of litigation because assessing intent involves weighing evidence and assessing credibility of testimony. (Id.). Therefore, Custer argues her claim should survive Dollar General's summary judgment motion. (Id.).
Element two of a claim for intentional interference with contractual relations requires the plaintiff to establish "purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring." CGB Occupational Therapy, Inc., 357 F.3d at 384. "The second element requires proof that the defendant acted "for the specific purpose of causing harm to the plaintiff." Phillips v. Selig, 959 A.2d 420, 429 (Pa. Super. Ct. 2008) (quoting Glenn v. Point Park College, 272 A.2d 895, 899 (Pa. 1971)).
By her own admission, Custer states that she is "not sure where [NAM] got their information" that she was not permitted to enter Dollar General stores. (ECF No. 40 at New Matter ¶ 76). As an initial step in demonstrating "purposeful action on the part of the defendant," the plaintiff must establish that it was/ in fact, the defendant who took the purposeful action intended to harm the plaintiff. Given Custer's admission that she is unsure of where NAM received their information that she was not permitted to enter Dollar General stores, Custer has not produced sufficient proof to show "purposeful action on the part of the defendant." Phillips, 959 A.2d at 429. Nevertheless, assuming Dollar General did in fact notify NAM that Custer was not permitted in certain Dollar General stores, Custer has produced no evidence to prove that Dollar General acted with "the specific purpose of causing harm" to Custer. Id. Indeed, no evidence has been produced by Custer to demonstrate any intent or purpose on the part of Dollar General, other than to keep Custer out of its stores. Without more, the Court cannot find that Dollar General acted with the "specific purpose of causing [Custer] harm." Id. Therefore, Custer has not satisfied element two of her claim for intentional interference with contractual relations because she has not produced sufficient proof that Dollar General acted with the specific purpose of causing her harm.
Element three of a claim for intentional interference with contractual relations requires the plaintiff to establish "the absence of privilege or justification on the part of the defendant." CGB Occupational Therapy, Inc., 357 F.3d at 384. The third element requires proof that "the defendant's actions were improper under the circumstances presented, which is determined in accordance with the factors listed in Restatement Section 767.” Phillips, 959 A.2d at 429.
Restatement (Second) Section 767 states: "In determining whether an actor's conduct in intentionally interfering with a contract ... is improper or not, consideration is given to the following factors: (a) the nature of the actor's conduct; (b) the actor's motive; (c) the interests of the others with which the actor's conduct interferes; (d) the interests sought to be advanced by the actor; (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other; (f) the proximity or remoteness of the actor's conduct to the interference; and (g) the relations between the parties." Phillips, 959 A.2d at 429-30 (quoting Restatement (Second) of Torts § 767 (1979)).
Having reviewed the factors found in Section 767, as well as the facts and circumstances of this case, the Court finds that Custer has failed to produce sufficient evidence to prove that Dollar General's actions were "improper under the circumstances" when it informed Custer that she was not permitted in its stores. Id. Moreover, Third Circuit precedent accords "substantial deference to defendants whose conduct, despite its conflict with plaintiff's interest, protects an existing business concern." Windsor Securities, Inc. v. Hartford Life Insurance Company, 986 F.2d 655, 665 (3d Cir. 1993). Custer has failed to provide the Court with sufficient evidence that Dollar General's actions were improper under the circumstances as she alleges because Dollar General was protecting its business interests in informing Custer she was not permitted in Dollar General's stores. Moreover, the Court finds that Custer has not produced sufficient evidence to show that Dollar General lacked any privilege or justification to keep Custer from entering its stores. Therefore, Custer has not satisfied element three of her claim for intentional interference with contractual relations.
Given the foregoing, the Court finds that no reasonable jury could conclude that Dollar General intentionally interfered with Custer's contractual relationship with NAM. Therefore, the Court will grant Dollar General's motion for summary judgment as to Custer's claim for intentional interference with contractual relations.
VIL Conclusion
For the forgoing reasons, the Court grants Defendant's Motion for Summary Judgment. (ECF No. 32). An appropriate order follows.
ORDER
AND NOW, this 13 day of June, 2022, upon consideration of Defendant's Motion for Summary Judgment (ECF No. 32), and for the reasons set forth in the accompanying Memorandum Opinion, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment (ECF No. 32) is GRANTED.